Constitutional Law

Beer remains imprisoned by provincial borders. In 2012, Gerard Comeau of Tracadie, N.B. was fined nearly $300 for bringing 15 cases of beer and three bottles of spirits from Quebec to New Brunswick. His battle against the law behind that fine has finally wound its way up through the courts.

Last month, in the final word on the matter, the Supreme Court of Canada reversed the trial judge’s decision and found constitutional s. 134(b) of the New Brunswick Liquor Control Act, which limits the amount of extra-provincial Canadian alcohol individuals can bring into the province. The Court determined laws that aim to curtail the inter-provincial passage of goods, whether directly through tariffs or indirectly through fines, violate s. 121 of the Constitution Act, 1867, which states that all items manufactured in any province must be “admitted free” into the other provinces. But laws with different aims that incidentally curtail such passage do not violate s. 121. In this case, the Court noted the legislation aims “not to restrict trade across a provincial boundary, but to enable public supervision of the production, movement, sale and use of alcohol within New Brunswick” (para 124). Furthermore, the impugned provision targets black market bourbon and Fredericton-brewed rotgut, as well as cheap Quebec beer and crisp Okanagan Pinot Gris. So the liquor limits are byproducts of another regulatory scheme, and therefore permissible.

Before addressing the constitutionality of s. 134(b), the Court “deliver[ed] a benchslap to the trial judge” for disregarding its 1921 decision in Gold Seal Ltd. V Attorney-General for the Province of Alberta, as Professor Leonid Sirota of the Auckland University of Technology Law School wrote on his blog, Double Aspect. Based on the Bedford and Carter exceptions to vertical stare decisis, the trial judge ignored precedent because of a new historical assessment of the intent behind s. 121. The Court determined this wasn’t sufficient, since “the underlying social context that framed the original legal debate [must be] profoundly altered” (para 31) and such a re-assessment doesn’t do so.

Ironically, Sirota argues, the Court doesn’t uphold Gold Seal either. In that decision, outright tariffs on inter-provincial trade are banned. But post-Comeau, provinces could impose tariffs as long as they’re rationally connected to a regulatory scheme with a non-trade objective. “So much for stare decisis,” he writes.

In a commentary in the National Post, Professor David Schneiderman of the University of Toronto Faculty of Law notes it’s unsurprising the Court gives little weight to the historical context, “to some imagined framing moment derived almost exclusively from the pen of a single British draftsperson.” That is, under the “living tree” interpretation of the Constitution, purported intentions don’t matter all that much.

Professor Malcolm Lavoie of the University of Alberta Faculty of Law argues in a CBC column that the Court could have reached a fairer balance between federal and provincial powers by simply mandating a test more robust than rational connection, such as a test of necessity. “Under this approach, the government of New Brunswick would have had to establish that its prohibition on outside liquor was truly necessary to achieve objectives relating to public health and safety, a much higher bar than the one the Court applied,” he writes.

Furthermore, Lavoie points out that the Court’s interpretation of s. 121 renders it obsolete: under s. 91 of the Constitution Act, 1867, interprovincial trade is a federal head of power. That is, it was already impossible for provincial governments to directly impose tariffs on goods coming in from other provinces.

In the Toronto Star, Dr. Maria Banda, a visiting fellow at the University of Toronto Faculty of Law, has a more positive view of the decision. Comeau ensures that provinces with higher environmental or health standards, for example, don’t risk “being dragged down to the lowest common denominator by those with lax or inexistent regulations,” she writes.

This decision will likely reverberate throughout the country, including in Alberta and British Columbia’s pipeline dispute. Those provinces should see Comeau as a warning “that they’re not going to be able to rely on their own jurisdiction under the Constitution to do things that will either interfere in federal jurisdiction or will interrupt the free flow of natural resources that is normally supposed to occur without discrimination between provinces,” Professor Carissima Mathen of the University of Ottawa Faculty of Law, said in an interview in Maclean’s.

For his part, Schneiderman argues it’s now less likely Alberta’s Bill 12 will be held to be constitutional. The principle aim of the bill, which requires government permission to export petroleum resources, is “to economically harm a recalcitrant province for interfering with Alberta’s ability to get its oil to port,” he writes. And under Comeau, that cannot be countenanced.

On January 31, 2018, the Asper Centre Constitutional Roundtable Series hosted Athanasios (Akis) Psygkas, Lecturer in Law at University of Bristol and Visiting Scholar at the University of Toronto. His presentation was titled: “The hydraulics of constitutional claims: Four models of democratic constitutionalism and same-sex marriage.” Professor Brenda Cossman, Director of the Bonham Centre for Sexual Diversity Studies, joined as discussant.

There are many actors involved in constitutional interpretation. Psygkas identified a bottom-up process of constitutional evolution wherein multiple actors raise claims with constitutional implications. To articulate this “hydraulics” process, he conducted a case study of the legal recognition of same-sex marriage in four countries: the US, Spain, the UK, and Ireland.

In Obergefell v Hodges, the US Supreme Court held that the Fourteenth Amendment of the US Constitution requires state to issue marriage licenses to same-sex couples. The decision focused on liberty. Justice Kennedy, writing for the majority, provided a list of social actors (“central institutions in American life”) that contributed to the evolving debate of constitutional interpretation regarding same-sex marriage and argued that this debate had now reached a stage of deliberative maturity that permitted the Court to channel this into constitutional law.

In Spain, same-sex marriage was recognized through the legislature, beginning first at the regional level before being formalized in national legislation. In further contrast to the US, the petitions that were put forth in support of legalizing same-sex marriage focused on equality, not liberty. When challenged, the Spanish Constitutional Court stated that it cannot remain “aloof from social reality” and cited statistics concerning Spanish attitudes toward same-sex marriage in making its decision to recognize same-sex marriage.

In the UK, the process to recognize same-sex marriage was largely legislative and proceeded in stages. First, homosexual activity was decriminalized for persons over 21 years of age in 1967. But this provoked some backlash: legislation prohibiting promotion of homosexuality remained in place until 2003. Civil partnerships were created in 2004, which permitted homosexual couples legal recognition. Formal recognition of same-sex marriage came into effect in 2014. Throughout these stages, there was no electoral manifesto concerning same-sex marriage; rather, the process occurred organically through public consultations and hearings at the committee stage of the legislative process. The debate continues in Northern Ireland, where a married, English same-sex couple is challenging the state’s refusal to recognize their marriage.

The Republic of Ireland has direct citizen involvement in constitutional change through referendums, especially when change concerns fundamental laws, like constitutional amendments. The consensus in Ireland, however, had long been against recognizing same-sex marriage. This social attitude had influenced how politicians and the judiciary interpreted relevant legislation and articles of the Irish Constitution, especially Article 41, which concerns family. In 2013, a referendum on same-sex marriage was conducted and by a 62% approval vote brought the 34th Amendment of the Irish Constitution into existence, granting same-sex marriage legal recognition.

Each of these four examples demonstrate the varied systems and means through which social actors influence constitutional interpretation and change. The predominate direction of influence was bottom-up.

Professor Cossman argued that in Canada same-sex marriage recognition was a predominantly court-centric process, with Charter dialogue dominating the arguments. Parliament responded to Supreme Court of Canada (SCC) rulings by changing legislation. This process began with the SCC ruling that the common law definition of marriage as between one man and one woman violated section 15 of the Charter (Halpern v Canada). The Same-Sex Marriage Reference soon followed in 2004. This appears to be an exception to the hydraulics process that Psygkas observed in the four countries discussed. Although there were many activist groups active at this time, the Canadian experience of recognizing same-same marriage appears to have been more of a top-down process and did not exemplify the same hydraulics process Psygkas observed elsewhere. The SCC interpreted the Charter and Parliament followed. Invariably, some bottom-up processes were at play in the Canadian same-sex marriage debate: our Charter is young and reflects Canadian values, and our judges are, after all, from the citizenry.

Psygkas argued that the driving force in this “hydraulics” process is a bottom-up demand for a specific constitutional position within complex institutional structures; the exact form it takes varies depending on the constitution and the institutions present. What implications does this have for when we observe social backlashes or rising sentiments that we perceive to be moving our society in the wrong direction? Current political preoccupations with the so-called “populist” wave are perhaps an instance of this process.

Ryan Howes is a JD Candidate at the Faculty of Law and is the Asper Centre work-study student.

At the end of 2017 the Supreme Court of Canada (SCC) heard arguments in the two Trinity Western University (TWU) appeals. The results of the appeals may have wide and deep impacts on the legal profession and on Canada more broadly.

On January 18, 2018, the Asper Centre, Out in Law UofT, the Journal of Law and Equality, and the Christian Legal Fellowship of UofT Law co-hosted a discussion panel, showcasing counsel for interveners on the TWU appeals. The panelists were Joanna Radbord (Advocates’ Society), Angela Chaisson (LGBTOUT), Barry Bussey (Canadian Council of Christian Charities), Paul Jonathan Saguil (Start Proud/Outlaws), Derek Ross (Christian Legal Fellowship), and Chris Palliare (Advocates’ Society).

Trinity Western University is a private Christian university in British Columbia. TWU wanted to open a law school. The school provides an education founded on evangelical Christian principles. TWU’s approach to community development is expressed in a community covenant, a code of conduct that encourages its students to live by Biblical teachings. Amongst other considerations, the covenant prohibits sexual intimacy that violates the sacredness of marriage, as defined as between a man and a woman. Unmarried individuals are expected to live celibate lives. While LGBTQ students are permitted to attend the university, TWU would prohibit admission to its law school if a student refuses to sign the covenant.

The appeals involve legal challenges to decisions by the law societies of Ontario and British Columbia. Ontario decided to deny the accreditation of future TWU law graduates. The Court of Appeal of Ontario held that Law Society of Ontario’s (LSO) statutory mandate to act in the public interest entitled it to refuse to accredit TWU’s law school. The LSO refused to accredit on the basis that the covenant was discriminatory. BC, on the other hand, initially approved accreditation, but reversed this decision based upon a referendum it held with members. The BC Court of Appeal upheld the lower court’s decision to overturn this second decision.

The panel discussion explored the case, other legal precedents and wider considerations of constitutional advocacy. In their general discussion of the case, Chris Palliare highlighted that the SCC’s decision would likely hang on how the court defines and places boundaries on the freedom of religion enshrined in the s. 2(a) Canadian Charter of Rights and Freedoms. Additionally, Barry Bussey noted that this issue also turns on jurisdiction, notably whether the Law Society of Ontario has the right to bar membership.

An early fault line in the discussion was when the panelists considered the 2001 TWU v British Columbia College of Teachers (BCCT) case. Both Angela Chaisson and Joanna Radbord suggested that there have been many social and legal changes around LGBTQ+ rights since the finding in BCCT. Angela Chaisson asserted that the two cases were overwhelmingly dissimilar, involving different parties and underlying statutes, and with Canadian society having substantially progressed on LGBTQ+ rights since 2001. By comparison, Barry Bussey asserted the similarities between the two cases, and warned that a finding that essentially overturned BCCT would have a knock-on effect on evangelical and other religious communities’ abilities to continue to operate professional and educational facilities.

In considering the long-term impact of the TWU appeals, Derek Ross stated that the Court was at a crossroads in its recognition of religious communities’ freedom of association (s. 2(d) of the Charter). He warned that there could be deleterious impacts on the rights of religious communities. He noted that the Court supporting the LSO would be tantamount to finding it acceptable for state actors to quash the rights of groups externally assessed to have distasteful beliefs. Chris Palliare questioned the relevance of s. 2(d) to this case, and maintained that the analysis should focus on s. 2(a) religious freedom rights. Both Barry Bussey and Derek Ross stressed that a finding against TWU would have extensive and negative impacts on religious rights.

In considering what this ruling would mean to LGBTQ+ rights, Joanna Radbord noted that given the fixed number of law school spaces, allowing accreditation would diminish the ability for LGBTQ+ students to access law school. She also stressed that drawing evangelical students to one law school would intellectually impoverish the legal community at large, by hindering fruitful and diverse discussion. She highlighted the panel as an example of how law schools should act as meeting places of diverse worldviews. Paul Johnathan Saguil noted that he could have seen himself going to TWU at an early stage in his life, which would have had long term and negative impacts on his development. Angela Chaisson noted that the case was not necessarily zero-sum, and there could still be positive impacts for LGBTQ+ rights encapsulated in an adverse decision.

Finally, the group discussed the impact of the recent changes to the length of submissions by interveners down to 5 minutes of oral advocacy. Chris Palliare intoned that this was a mistake, stressing that the Court should accept fewer interveners, speaking for longer periods. Derek Ross noted that a greater number of perspectives was always welcome. Barry Bussey remarked that the new time limit meant that submissions had to be drafted in a strategic manner. In his preparation, he found that 5-minute submissions constituted 500 spoken words, a very limited space for nuanced reflections. Angela Chaisson agreed that fewer interveners were important, but that the SCC needs to start promoting the voices of people directly affected by the law. She questioned the validity of the court’s initial decision to grant no LGBTQ+ groups intervener status. Joanna Radbord noted the incredible role modelling that comes from having queer women as advocates before the SCC.

All the panelists stressed the importance and rewarding nature of constitutional advocacy. They underscored that interested students and lawyers should seek out pro-bono activities, actively pursue this type of work through their firms, connect to ongoing efforts through their own communities, and look to the David Asper Centre for opportunities.

Erika Voaklander is a 1L JD Candidate and member of Out in Law UofT and Solomon McKenzie is a 2L JD Candidate at the Faculty of Law and is co-leader of Out in Law UofT.

On March 2, 2017 the Asper Centre for Constitutional Rights convened a Constitutional Law career panel in response to law students’ common question: How can I practice Constitutional Law?

Four distinguished panelists provided their insight and advice to a room full of eager law students about practicing Constitutional Law in their fields. The panelists were: Joseph Cheng of the Department of Justice of Canada, Nader Hasan a partner in the firm of Stockwoods Barristers, Dan Rohde a staff lawyer at the Income Security Advocacy Centre, and Cara Zwibel, the Director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association.

The following pieces of advice were distilled from the panelists’ well-received presentations, in which they answered questions about their jobs, their personal career paths and their best pieces of advice to students.

Don’t expect to become a constitutional lawyer immediately and do not stress about not getting “the” job or articling position straight out of law school. The path to practice Constitutional Law is not always a straight one.

Pursue any opportunity to do pro-bono work within the firm that you are at. Sometimes this may mean working on pro-bono files in your personal time.

Present opportunities to do pro-bono work at your firm, assuring your principal(s) that this work will be done in your spare time; this way the “ask” of the firm is only to provide administrative or disbursement costs.

While large-scale pro-bono programs at the big Canadian law firms are in their nascent stage, pro-bono work in an American law firm with an entrenched pro-bono program can provide a lot of valuable experience and exposure.

The need to address Charter violations and challenge unconstitutional laws and government actions is unfortunately not dissipating so, rest assured if you want to work on a pro bono case, you can find a case. Don’t give up.

To get excellent litigation experience, which is beneficial if you are interested in becoming a Constitutional litigator, seek to do a clerkship. Do not only focus on the top courts, as you may get a more valuable experience in the Superior Court of Justice, for example.

Focus your career pursuits in the public law sphere, more specifically in a field of law that intersects most closely with Charter issues i.e. Criminal defense work, refugee law, labour law, or administrative law.

Expect to earn comparably less in public interest legal work than in corporate law, but to otherwise feel rewarded as being an instrument for social change.

In addition to the above, we urge law students to actively engage with the David Asper Centre for Constitutional Rights. You can do so in a number of ways. For example: take our upper year clinical legal education course, volunteer for one of our student working groups, or write a case comment for our Newsletter on a constitutional law case that you have an interest in.

We welcome your feedback about this event and if you have any thoughts about an event that you would like to see the Asper Centre organize, please get in touch.

The Asper Centre for Constitutional Rights shares our deep concerns with the January 27th executive order made by President Trump preventing individuals from the predominantly Muslim countries of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from temporarily entering the United States.

The Asper Centre for Constitutional Rights supports Prime Minister Justin Trudeau’s statement about Canada welcoming refugees and immigrants to our country. We also support Canadian civil society organizations’ calls on the federal government to suspend the Safe Third Country agreement effective immediately, as sending asylum seekers back to the U.S. will put Canada in breach of its legal obligations in terms of the UN Refugee Convention and our domestic laws.

The Canadian Charter of Rights and Freedoms specifically prohibits discrimination based upon race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. The Asper Centre for Constitutional Rights is honoured to promote our Charter as the supreme law of our land and to do everything within our mandate to ensure that our Charter is being respected. This includes training and supporting current and future Constitutional law lawyers, who have a clear role to play in challenging this unconstitutional executive order and any other violations of the Constitution.

The Asper Centre for Constitutional Rights supports the rights of refugees, immigrants, and dual citizens and we commit to ensuring that equity, diversity, and inclusion continues to be an essential part of our Canadian landscape.